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These notes refer to the Marine and Coastal Access Bill [HL] as brought from the House of Lords on 9 June 2009
MARINE AND COASTAL ACCESS BILL [HL]
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Marine and Coastal Access Bill [HL] as brought from the House of Lords on 9 June 2009. They have been prepared by the Department for Environment, Food and Rural Affairs in order to assist the reader of the Bill and to help inform debate on it.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
Overview of the Bill
3. The Bill introduces a new system of marine management. This includes a new marine planning system, which makes provision for a statement of the Government’s general policies, and the general policies of each of the devolved administrations, for the marine environment, and also for marine plans which will set out in more detail what is to happen in the different parts of the areas to which they relate. The Bill includes provision changing the system for licensing the carrying on of activities in the marine environment. It also provides for the designation of conservation zones. It changes the way marine fisheries are managed at a national and a local level and modifies the way licensing, conservation and fisheries rules are enforced. It allows for designation of an Exclusive Economic Zone for the UK, and for the creation of a Welsh Zone in the sea adjacent to Wales. The Bill also amends the system for managing migratory and freshwater fish, and enables recreational access to the English and Welsh coast.
Bill 108—EN 54/4
Background
4. Work towards the proposals in this Bill has been going on for some time. In 2002, the Government published its Marine Stewardship Report 1 which set out a “vision for the marine environment”. This was followed by a consultation on how to realise this vision 2, 3. A number of other reports and reviews followed, suggesting that a new approach to managing all marine activities was needed, together with legislation to implement it.
1 http://www.defra.gov.uk/environment/water/marine/uk/stewardship/index.htm
2 Department for Environment, Food and Rural Affairs (2002). Seas of Change: The Government’s consultation paper to help deliver our vision for the marine environment. PB 7746. Defra publications, London
3 Department for Environment, Food and Rural Affairs (2004). The Government’s response to its Seas of Change consultation to help deliver our vision for the marine environment. PB 9330. Defra publications, London.
5. In March 2006, the Government published a consultation document on the aims and scope of a Marine Bill. 4 The consultation explored how marine conservation proposals could be taken forward, possible changes to marine licensing regimes, the possible shape of a marine planning regime and whether there was a case for a new Marine Management Organisation (MMO) and, if so, what functions it should undertake. Alongside the consultation and analysis of responses, the Government ran stakeholder forums to explore and allow an exchange of views on proposals. A summary of responses to the consultation (excluding views gathered in the forums) was published in October 2006 5.
6. In March 2007, the Government published a Marine Bill White Paper 6 putting forward proposals for legislative measures to introduce new arrangements for the sustainable management of activities and protection of resources in the UK’s marine area.
7. The White Paper set out proposals covering:
a) a new marine planning system
b) a new system for licensing marine developments
c) a flexible mechanism to protect natural resources, including marine conservation zones with clear objectives
d) changes to the management of marine fisheries
e) a Marine Management Organisation to discharge these and other marine functions on behalf of UK Government
8. Proposals have also been developed to amend the legislation governing the management of migratory and freshwater fisheries and to enable greater public access to the English and Welsh coast. The provisions on migratory and freshwater fisheries were developed from recommendations made to Government by the Salmon and Freshwater Review Group in 2000, which received input from a large number of interested individuals and organisations. Provisions to improve access to the coast were consulted on by Government during 2007. 7
9. In April 2008, the Government published the draft Marine Bill for public consultation and pre-legislative scrutiny. 8 The draft Bill contained clauses covering the proposals consulted on in the White Paper together with provisions on migratory and freshwater fisheries and coastal access.
10. The draft Bill was scrutinised by a Joint Committee of the House of Commons and the House of Lords. The coastal access provisions were also scrutinised by the House of Commons Environment, Food and Rural Affairs Committee. The EFRA Committee 9 reported on 22 July with 23 recommendations, and the Joint Committee 10 reported on 30 July with 96 recommendations. The Government’s response to these recommendations was published on 25 September 2008. 11
11. Alongside the pre-legislative scrutiny, the draft Bill and an accompanying policy paper and Impact Assessment were published for public consultation. The consultation ran from 3 April to 26 June. A total of 3,899 consultation responses were received; of which 3,500 were campaign responses and 399 were non-campaign submissions from individuals or organisations. In addition, 11,000 postcards on the coastal access provisions were received. The Government’s summary of consultation responses was published on 25 September 2008. 12
Summary of the Bill
12. Part 1 establishes an independent body, the Marine Management Organisation (MMO). The MMO is to discharge a number of marine functions on behalf of UK Government. Its general objective is to do this with the objective of making a contribution to the achievement of sustainable development, taking into account all relevant facts and matters and any effect that decisions in one area will have on any other area. As a Non-Departmental Public Body (NDPB), the MMO will report formally to Parliament through the Secretary of State. It is intended that the MMO will be given responsibility for drawing up marine plans for the purposes of the new planning regime. It will also administer marine environmental licensing and harbours regimes on behalf of the Secretary of State, manage marine fisheries, undertake nature conservation functions and use enforcement powers set out in Part 8 of this Bill to enforce fisheries, licensing and nature conservation legislation.
13. Part 2 defines the UK marine area, used by subsequent Parts of the Bill to describe areas where activities take place. It also allows an Exclusive Economic Zone to be designated (see paragraph 34) and creates the Welsh zone, the boundaries of which are to be set by an order made by the Secretary of State or an Order in Council made by Her Majesty. Functions relating to fisheries will be transferred to the Welsh Ministers in relation to the Welsh zone. Other provisions in the Bill make provision for certain other functions to be conferred on the Welsh Ministers in relation to the Welsh zone (for example, drawing up marine plans).
14. Part 3 introduces a new system of marine planning. At present, marine policy is developed sector by sector, which makes it difficult for decision-makers and users of the sea to know what the relative priorities are. The planning provisions provide for the preparation of a Marine Policy Statement to articulate the priorities and objectives of the UK Government, the Welsh Assembly Government, the Scottish Executive and the Northern Ireland Assembly in their marine areas. It also provides for the preparation of marine plans for the UK marine area which take account of the Marine Policy Statement.
15. The marine licensing provisions in Part 4 will replace the licensing and consent controls currently exercised under Part II of the Food and Environment Protection Act 1985 and Part II of the Coast Protection Act 1949. This Part also removes the consent requirements of the electronic communications code set out in Schedule 2 to the Telecommunications Act 1984. The considerations built into these regimes are merged into the new regime, with some modifications. This Part amends the relationship between marine licensing and certain other legislation governing activities in the marine area, including the Petroleum Act 1998 and the Electricity Act 1989. Additionally, it provides for the mechanisms and powers for enforcing the licensing regime.
16. Part 5 of the Bill provides a power, across most of UK waters, to designate new Marine Conservation Zones (“MCZs”), in place of the current power under the Wildlife and Countryside Act 1981 to designate Marine Nature Reserves. Existing Marine Nature Reserves will be converted into MCZs. There will be a duty to designate MCZs so as to contribute to a UK network of marine sites, MCZs complementing the Natura 2000 network of European sites. This will help the Government to fulfil the UK’s commitment, under the Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR), to establish an ecologically coherent network of marine protected areas. The Bill provides for new duties on public bodies to exercise their functions in ways that further the conservation objectives set for MCZs, and not to authorise activities or development which carry a significant risk of hindering those conservation objectives. There will also be powers to make byelaws or orders, and interim byelaws or orders, to protect sites, and potential sites, from otherwise unregulated activities which may cause harm.
17. Part 6 changes the legislation relating to the establishment, organisation and responsibilities of Sea Fisheries Committees, establishing in England new bodies called Inshore Fisheries and Conservation Authorities (IFCAs). It imposes on IFCAs duties in relation to fisheries and nature conservation, and confers on them the power to make byelaws. The membership and funding arrangements of IFCAs are also set out.
18. Part 7 contains several Chapters amending existing legislation relating to marine and freshwater fisheries. It amends the Sea Fish (Conservation) Act 1967 to provide new powers in relation to the regulation of commercial and recreational fishing. It also amends the Sea Fisheries (Shellfish) Act 1967 to modify the way that Several and Regulating Orders, which are used to establish and manage shellfisheries, are made and operated. In addition, this Part amends legislation relating to migratory and freshwater fish. It gives new powers to the Environment Agency to conserve and manage migratory fish, including powers to make emergency byelaws to respond to unforeseen threats to fish stocks and powers to introduce a new regulatory system for the movement of live fish where necessary to protect national and local biodiversity. This Part also modifies the (fishing) licensing regime, introduces an authorisation regime for some fishing activities, and impacts upon related offences, powers and obligations of the Environment Agency. Finally, this Part repeals redundant legislation.
19. Part 8 provides for the appointment of enforcement officers and for a set of common enforcement powers for enforcing requirements across licensing, nature conservation and fishing in the marine area. It provides new powers that may be exercised for the purposes of enforcing sea fisheries legislation.
20. Part 9 introduces new powers to extend recreational access to the English coast and to enable the creation, as far as is possible, of a continuous route around the coast wide enough to allow unconstrained passage on foot and recreational space. It also contains provisions enabling the National Assembly for Wales to create a coastal path around the Welsh coast.
21. Part 10 amends legislation in relation to Natural England and the Countryside Council for Wales and modifies the regime governing harbours set out in the Harbours Act 1964. It also introduces navigational controls into the Energy Act 2008 in lieu of those currently contained in the Coast Protection Act 1949.
22. The final Part of the Bill, Part 11, contains supplementary provisions including commencement arrangements and repeals.
Terminology describing marine areas
23. There are a number of existing terms which are used throughout the Bill to describe different parts of the UK marine area. These are set out below. The Bill also defines additional terms to refer to specific parts of the UK marine area.
Baseline
24. The marine area around the UK coast is sub-divided into a number of zones. These are measured from a “baseline”. This is usually the low water mark around the coast. But there can be straight baselines across the mouths of bays, and all rocks, reefs etc above the sea at low water but submerged at other times extend the baseline if they are within 12 nautical miles (“nm”) of the mainland or an island. The UK baseline is delineated in the Territorial Waters Order in Council 1964 (as amended by the Territorial Sea (Amendment) Order 1998, SI 1998/2564).
Internal Waters
25. Marine waters to the landward side of the baseline are known as internal waters.
Territorial Sea
26. The UK territorial sea is defined by the Territorial Sea Act 1987 as the sea extending 12nm from the baseline. For the most part the territorial sea of the UK does not adjoin that of any other state. Where it does do so in the English Channel, the Territorial Sea (Limits) Order 1989 (SI 1989/482) sets out the limits of the territorial sea in the Straits of Dover in accordance with an agreement between the UK and France. In relation to the delineation of the territorial sea between the UK and the Republic of Ireland, the situation is more complex, with no boundary having been agreed between the two states. Instead arrangements have been put in place under the Belfast Agreement for joint management of the Loughs that form the border (the Foyle, Carlingford and Irish Lights Commission’s Loughs Agency).
27. Within the territorial sea, the UK has jurisdiction for the sea itself, the seabed subjacent and the air above. This is subject to the right of innocent passage by ships of all other states.
28. Parts of the UK territorial sea form part of Scotland, Northern Ireland and Wales for the purpose of exercising devolved functions. The Scotland Act 1998 defines “Scotland” as including so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland (section 126(1)). Similarly, section 98 of the Northern Ireland Act 1998 (c.47) defines Northern Ireland as including so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Northern Ireland. The Government of Wales Acts 1998 and 2006 provide that “Wales” includes the sea adjacent to Wales out as far as the seaward boundary of the territorial sea (see also section 155(1)). The extent of the “English” territorial sea is normally assumed to be that part of the territorial sea that has not been assigned to another part of the United Kingdom but was defined in section 32M of the Electricity Act 1989, inserted by section 37 of the Energy Act 2008.
UK Continental Shelf
29. References to areas of the sea within the UK sector of the continental shelf are always references to the area of sea outside the UK territorial sea but within an area specified in an order having effect under section 1(7) of the Continental Shelf Act 1964 (c. 29). Rights in the continental shelf extend to mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species.
British Fishery Limits
30. British fishery limits currently extend 200 nm from the baseline. Similar to the apportioning of the territorial seas, Scotland and Northern Ireland have their own areas within the British fishery limits, known as the Scottish and Northern Ireland Zones. The Northern Ireland Zone is defined as being the sea within British fishery limits which is adjacent to Northern Ireland. This can be thought of as being the area of British fishery limits lying between the territorial sea around Northern Ireland and that of the Isle of Man. The Bill amends the definition of British fishery limits in the Fishery Limits Act 1976 by reference to the exclusive economic zone (EEZ) to be designated under Part 2.
31. The Scottish Zone is defined as that part of the sea within the British fishery limits established under the Fishery Limits Act 1976 which is adjacent to Scotland. The boundaries of both the Northern Ireland Zone and the Scottish Zone are defined by Order in Council.
32. This Bill also includes provision for the designation of a Welsh Zone for fisheries matters. This will be defined by Order in Council but can be thought of as comprising that part of the sea within British fishery limits which is adjacent to Wales.
Renewable Energy Zone/ UK pollution zone
33. The Renewable Energy Zone was declared under section 84 of the Energy Act 2004. It extends up to a maximum of 200 nautical miles from the baseline. The UK has claimed exclusive rights in this area with respect to production of energy from water or winds, within an area to be designated by Order in Council. The UK has also claimed rights in relation to a similar area (the UK pollution zone) in relation to the protection and preservation of the marine environment, under the Merchant Shipping (Prevention of Pollution) (Limits) Regulations 1996 and 1997. As in the case of British fishery limits, the Bill amends this legislation so that these zones are designated by reference to the exclusive economic zone as declared under Part 2 of the Bill.
Exclusive Economic Zone
34. This Bill includes a clause allowing an Exclusive Economic Zone to be declared by Order in Council. This will occur once the precise boundaries of the Zone are finally determined following negotiations with neighbouring States. By their nature, such zones are capable of extending to 200nm from baselines and it can be expected that the extent of the zone will be similar to that adopted for the existing zones (or indeed British fishery limits).
Other terminology
35. “Inland waters” is a term usually used to refer to freshwater rivers, lakes, streams and groundwaters.
PART 1: MARINE MANAGEMENT ORGANISATION
Chapter 1: Establishment
Clause 1: The Marine Management Organisation
36. This clause establishes a body to be known as the Marine Management Organisation (MMO).
37. The MMO is to exercise those functions that are conferred on it by the Bill and through other legislation.
38. There are a number of ways in which the Bill provides for the MMO to take on functions.
39. Firstly, a number of existing functions are directly transferred to the MMO under Chapter 2 of this Part. Clauses 4 to 11 transfer existing sea fisheries and nature conservation functions currently performed by the Secretary of State (some of them through the Marine and Fisheries Agency) or by Natural England directly to the MMO. Clauses 12 and 13 also transfers functions to the MMO relating to electricity generating and renewable energy installations.
40. Secondly, the Bill confers new functions on the MMO. Under Part 5 (marine conservation zones) the MMO is given the power, following consultation, to make byelaws to further the conservation objectives of any designated marine conservation zone in England (clause 129). Such byelaws can, amongst other things, prohibit anything that will interfere with the sea bed. Under clause 131, the MMO is given power to make emergency byelaws if it thinks there is an urgent need to protect a marine conservation zone in England. The MMO may also make interim byelaws (clause 132) in relation to potential new marine conservation zones.
41. Under Part 6 of the Bill, which relates to inshore fisheries and conservation authorities (IFCAs), the MMO is to be consulted in relation to the making of orders establishing inshore fisheries and conservation districts in England (clause 149). Each such district is to have an inshore fisheries and conservation authority, the membership of which is to comprise some people appointed by the MMO (clause 151).
42. Under Part 7 of the Bill, an amendment to the Sea Fisheries (Shellfish) Act 1967 gives the MMO the powers to grant an exemption from the ban under section 17 of that Act on taking or selling crabs and lobsters, if they are taken for scientific purposes (clause 206).
43. Thirdly, other Parts of the Bill enable Ministers to delegate their marine functions under the Bill to the MMO. Part 3 (marine planning) provides powers to “marine plan authorities” (listed in clause 50) to delegate certain marine plan functions to public bodies by means of a direction (clause 55). Part 4 (marine licensing) enables the Secretary of State to make an order which delegates certain of his marine licensing functions to any person specified in the order (clause 98), which can include the MMO.
44. Fourthly, other functions will be conferred on the MMO through agreements with the Secretary of State. Chapter 3 of Part 1 makes provision for the Secretary of State to enter into agreements with the MMO for the MMO to perform any of the Secretary of State’s marine functions.
45. In addition, where functions that the MMO is to undertake are currently set out in secondary legislation, the Government will seek to amend that legislation to confer those functions on the MMO. Examples of secondary legislation that would be amended are the Conservation (Natural Habitats &c) Regulations 1994, the Offshore Marine Conservation (Natural Habitats, &c) Regulations 2007 and the Grants for Fishing and Aquaculture Industries Regulations 2007.
Clause 2: General objective
46. The MMO is to act as the UK Government’s strategic delivery body in the marine area. As such it will exercise a number of marine functions. This clause sets out the MMO’s general objective in relation to those functions. It must ensure that activity in its marine area is managed, regulated and controlled with the objective of making a contribution to the achievement of sustainable development. To facilitate the performance of its overall objective of contributing to the achievement of sustainable development under subsection (1)(a) the MMO may further any of the three core elements of sustainable development. This may be necessary to ensure that an appropriate balance between environmental, social and economic considerations is reached (subsection (2)).
47. In carrying out its functions the MMO must take account of all relevant facts and matters (subsection (1)(b)). The test is an objective one: the MMO must take into account any fact or matter that is in fact relevant. Subsection (3) gives examples of the sorts of evidence that the MMO will need to take into account in fulfilment of this duty. A broad definition of evidence applies to the clause (see subsection (12)) to ensure that reliance can be placed upon the fullest possible range of evidence that the MMO is likely to need to refer to in carrying out its functions, including scientific and economic data and predictive studies. Subsection (3)(c) enables the MMO additionally to take into account other things which it may consider appropriate (but this does not mean that it can leave out of account anything which is in fact relevant and which it is required to take into account under subsection (1)(b)).
48. The MMO must also consider the effect that decisions on one area will have on any other area so that overall it acts in a consistent and coordinated way (subsection (1)(c)). This means that any decision of the MMO should be viewed in the context of the entirety of its functions to ensure that it comes to a balanced view.
49. The Secretary of State will issue the MMO with guidance as to how it is to seek to secure that a contribution to the achievement of sustainable development is made. This guidance will be subject to Parliamentary scrutiny before it is given to the MMO. It will be published by the Secretary of State and a copy of it will be provided by the MMO to any person who requests it.
Clause 3: Performance
50. The Secretary of State will set objectives and performance indicators for the MMO which it must endeavour to meet.
51. In addition, the MMO will be placed under a duty to have regard to the five principles of good regulation set out in section 21 of the Legislative and Regulatory Reform Act 2006 (LRRA). The MMO’s functions will be listed by Order under Part 2 of that Act. Section 24(6) LRRA requires that the body whose functions are to be listed be consulted. Clause 3(3) disapplies those consultation requirements. This is because the MMO must be made subject to the principles of good regulation on or before the date that it starts to deliver regulatory functions and there is a possibility that there will be insufficient time for such consultation between appointing the board members and the date on which the MMO is due to deliver those regulatory functions.
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